Hardiman’s concerns about Strasbourg court unconvincing

If good fences make good neighbours Mr Justice Hardiman was at his neighbourly best speaking at a conference on judges, politics and the Irish Constitution in DCU in September.

In a paper that focused mainly on the decision of the European Court of Human Rights in the case taken against Ireland by Louise O'Keeffe, he was sharply critical of that Court for, as he saw it, breaching its own admissibility rule requiring the exhaustion of domestic remedies by hearing a case that had not been comprehensively dispensed with by the Irish courts. His point was not that the case in Strasbourg was wrongly decided but that it should not have been considered by a court of subsidiary jurisdiction.

In this he concurred with the dissenting opinion of the Irish judge, Mr Justice Peter Charleton, who sat with the Grand Chamber of the European Court of Human Rights on an ad hoc basis when the O'Keeffe case was being heard.

He did not confine himself to commenting on the admissibility issue in the O’Keeffe case but went on to make bigger points about the original intent behind the European Convention of Human Rights, the nature of judicial dialogue between national and supranational courts and the nature of human rights more generally.

His points were supported with quotes from like-minded jurists with a fondness for history such as Justice Antonin Scalia and Lord Sumption as well as the former politician, Michael McDowell.

This typifies his approach as a judge whose scintillating judicial and extra-judicial pronouncements draw promiscuously from varied and entertaining sources and whose judgments are not always narrowly confined to points argued before him.

The rule requiring the European Court of Human Rights to hear only cases where all domestic remedies have been exhausted is not as straightforward as Mr Justice Hardiman suggests.

It is not at all uncommon for respondent states to argue that domestic remedies have not been exhausted. The reason for this admissibility rule is to emphasise that the court in Strasbourg only intervenes when a complaint has been fully dispensed with by the national courts. However, the Court of Human Rights has emphasised that the rule, which is neither absolute nor automatic, must be applied with some degree of flexibility and without excessive formalism.

Regard must be had to the particular circumstances of each case and the Court of Human Rights must take account of the general legal and political context in which remedies operate and the personal circumstances of individual complainants such as Louise O’Keeffe.

In relation to the status of the European Court of Human Rights in domestic law Mr Justice Hardiman professes mild relief at the fact that we do not have in Ireland an equivalent to the shrill UK debate on the legitimacy of decisions of that court but one cannot help wondering if the judge really regrets the absence of such a debate. He places heavy emphasis on the supremacy of the Irish Constitution of 1937 and the orthodox judicial view of rigid separation of powers reinforced by some of his own judgments. His assertion that we don’t proclaim often enough our status as the republic in which the rule of law has been longest established without tragic intervals of “Nazi and Stalinist Terrors” is a bit reductive. If the credit for this goes to our Constitution, it should be balanced against other significant problems caused by that Constitution.

He wonders in relation to certain decisions of the European Court of Human Rights whether human rights law is becoming "too big, too boundless and above all too unitary" echoing, perhaps, the views of the renowned historian of human rights, Samuel Moyn.

Mr Justice Hardiman argues, without blushing, that judicial dialogue between national and supranational courts must be mutually respectful and that “dialogue involves listening as well as declaiming”.

Supranational courts should, of course, be rigorously analysed and criticised. If the critical framework applied to constitutional courts, such as the US Supreme Court, is applied to a court like the European Court of Human Rights it can expect to be strongly criticised. But this is not a fair or intellectually plausible critique. To take the view that a particular decision on admissibility in one case confirms a trend indicating that the court in Strasbourg is transforming itself into a constitutional court in contravention of its subsidiary role is unconvincing.

It is probably true that some of us are too excitable about judicial enforcement or non-enforcement of rights and that this can distract somewhat from the heavy-lifting of political campaigning for rights.

We may also be accused of over-estimating the value of “constitutionalising” rights and expecting too much from international courts and other international mechanisms.

Mr Justice Hardiman should be thanked for provoking us to debate these issues even if his provocation is tendentious and excessively defensive.

He has pointed to the jurisdictional fence that he believes marks the territory between national and supranational courts and he cannot be accused of sitting on it. He can therefore see the fence more clearly than others. That is the great benefit of being on one side of that fence.

Prof Donncha O'Connell is head of the School of Law at NUI Galway where he teaches European human rights.